Archive for the ‘U.S. Constitution’ category

(The views expressed in this article are mine and do not necessarily reflect those of Warsclerotic or its other editors. — DM)

I wrote and published this article on December 27, 2011. Providing historical perspectives on the constitutional ramifications of the war, it has had more than 46,000 views. Perhaps it may provide useful perspectives now, as we seem to be heading toward another potentially more deadly and divisive civil war.

Only we can prevent another civil war. Will we?

Formerly great universities, once bastions of constitutionally protected free speech, are now trying — often successfully — to kill it. Fake news abounds increasingly in our “mainstream” media, which neglect or minimize legitimate news. Our history, good and bad, are being relegated to the trash can. Our history made America what she is and reflecting on it can help to make her even better.

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Emasculating the Constitution is bad way to preserve the nation.

The first shots in the United States Civil War were fired by the South during an attack on Fort Sumter a century and a half ago on April 12, 1861, not long after President Lincoln’s election on November 6, 1860 and about five weeks after he assumed office on March 4, 1861.

As Lincoln’s election became evident, secessionists made clear their intent to leave the Union before he took office the next March.[123] On December 20, 1860, South Carolina took the lead by adopting an ordinance of secession; by February 1, 1861, Florida, Mississippi, Alabama, Georgia, Louisiana, and Texas followed.[124][125] Six of these states then adopted a constitution and declared themselves to be a sovereign nation, the Confederate States of America.[124] The upper South and border states (Delaware, Maryland, Virginia, North Carolina, Tennessee, Kentucky, Missouri, and Arkansas) listened to, but initially rejected, the secessionist appeal.[126] President Buchanan and President-elect Lincoln refused to recognize the Confederacy, declaring secession illegal.[127] The Confederacy selected Jefferson Davis as their provisional President on February 9, 1861.[128]

The war still stirs “a trove of memories.” Some are of glory, others of misery and despair. A few have suggested that we are now engaged in another “civil war” of sorts, although not an armed conflict. The prospect of armed conflict over various issues, including illegal immigration and infringements of the Constitutional right to bear arms, has been raised. I occasionally come across comments at various blogs contending that the reelection of President Obama could precipitate another civil war; much the same as did President Lincoln’s election. It was noted here that thought has been given to a new civil war by some on the left.

[T]his afternoon, MSNBC’s Dylan Ratigan took to his show to yell fire in a crowded theater, asking viewers, “Are things in our country so bad that it might actually be time for a revolution? The answer is obviously ‘yes.’”

. . . .

Ratigan invites on cartoonist Ted Rall to talk about his new book The Anti-American Manifesto, and argue the case for violent overthrow of government. Quoting John Locke, Rall argues that “the people have an obligation to revolt,” and that “nothing will radicalize the American citizen more than being thrown out of their home by a bank.” Citing frustration with both parties, who he called “in bed with the duopoly,” Rall also noted that “the American left has been very peaceful since the early ’70s… and where has it gotten us?”

It seems to have been suggested here, in a piece written by Cokie Roberts in the contexts of Arizona’s then new immigration law and ObamaCare, that we need to ignore parts of the Constitution to save the rest. According to this comment about her article,

Toward the end this statement is made: “It’s hard to imagine what would happen politically if the Supreme Court sided with some states against Congress. The already severely frayed fabric of government would certainly be further torn apart. It’s far better to leave the health care debate in the arena of electoral politics — and for the losers to accept defeat. That’s the essence of democracy.”

Again, the suggestion is made to just accept the federal government’s decree even if unconstitutional. The thing that struck me here though was the “essence of democracy” concept. That may be how a democracy works, but that’s not how a Constitutional Republic works.

It seems appropriate to look at the conditions that led to and resulted from Civil War (1861 – 1865) in the context of the U.S. Constitution.

The Civil War of 1861 – 1865

In this article, I examined some of the factors leading to the Civil war and questioned whether we might have another. I contended that it would be a very bad idea even though a Rasmussen poll released on August 7th had reported that

just 17% of Likely U.S. Voters think the federal government today has the consent of the governed. Sixty-nine percent (69%) believe the government does not have that consent. Fourteen percent (14%) are undecided.

Even though the rights of the states atrophied massively with our Civil War and have continued their decline ever since, to have another would brutalize if not destroy what’s left of the most important of the many documents that have made the United States exceptional among nations. As I wrote in my earlier Civil War piece,

The United States have the best constitution ever written; we need to protect and defend it as citizens bound, as well as protected, by it. Leaving the union is not the solution; we can be more effective from within than as outsiders and the Constitution deserves and needs all of the protection and defense we can provide.

As suggested below, failures to protect and defend the Constitution “as citizens bound, as well as protected, by it” propelled the Civil War and should not propel another.

The Civil War and States’ Rights

From a common Southern perspective, the Civil War was fought to preserve states’ rights. As noted in my earlier article,

Robert E. Lee and many others of the South held their principal allegiance to their states. However, they did not wish the Union to be divided by force. According to Lee,

There is a terrible war coming, and these young men who have never seen war cannot wait for it to happen, but I tell you, I wish that I owned every slave in the South, for I would free them all to avoid this war.

Nor were they willing to have it restored by force over the objections of their states and were prepared to resist that force militarily. Shortly after Virginia had seceded on April 17, Colonel Lee — still an officer in the Army of the United States — wrote, “Virginia is my country, her I will obey, however lamentable the fate to which it may subject me.” After the war, in 1865, he declined an Englishman’s offer to escape the destruction of postwar Virginia: “I cannot desert my native state in the hour of her adversity. I must abide by her fortunes, and share her fate.” In a letter of April 20, 1861 to General Winfield Scott he asked that his resignation from the Army of the United States be accepted. The letter ended,

Save in defence of my native state, I never desire again to draw my sword. Be pleased to accept my most earnest wishes for the continuance of your happiness and prosperity, and believe me, most truly yours,

Virginia was the eighth of the eleven states to secede and was the state farthest north geographically. She became a principal battlefield during most of the Civil War.

The view that defense of states’ rights was the principal cause of the Southern Secession has been challenged, not well I think, for the reasons offered below, here and elsewhere.

Ending slavery as the reason for the Civil War

According to many, the Civil War was fought to end the scourge of slavery. Not all in the North shared this view. As noted in my earlier Civil War article, Lincoln had said on April 17, 1859,

I think Slavery is wrong, morally, and politically. I desire that it should be no further spread in these United States, and I should not objectif it should gradually terminate in the whole Union.

I say that we must not interfere with the institution of slavery in the states where it exists, because the constitution forbids it, and the general welfare does not require us to do so. (emphasis added)

While the Civil War began as a war to restore the Union, not to end slavery, by 1862 President Abraham Lincoln came to believe that he could save the Union only by broadening the goals of the war. The Emancipation Proclamation [of 1863] is generally regarded as marking this sharp change in the goals of Lincoln’s war policy. (Insert added)

The United States Constitution

The U.S. Constitution should be considered as it dealt with the institution of slavery at the beginning of the Civil War in 1861 and until after the war ended with a Union victory in 1865. As soon-to-be-President Lincoln noted in 1859, the Constitution forbade interference “with the institution of slavery in the states where it exists.” Only after the Civil War was the Constitution amended, in 1865, 1868 and 1870, to eliminate slavery and its horrific consequences.

Slavery was contemplated and protected under the Constitution as ratified in 1788 and as it remained in force in 1865. Here are the pertinent articles; only one pertinent amendment, the Tenth, was in force as of the beginnings of the Civil War and, indeed, until the South was conquered.

Article I

Section 2. Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

Section 9: The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. (Emphasis added)

Consistently with Section 9, the importation of slaves into the United States was prohibited by Federal law enacted in 1807 and effective as of January 1, 1808.

Article IV required the return of fugitive slaves who escaped to “free” states.

Section 2: No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

In 1850, the Federal Fugitive Slave Act was enacted to ensure implementation of Article IV, Section 2. It was bitterly opposed in the North and was essentially nullified when the Civil War began.

Article V, by 1861 remained a part of the Constitution but was no longer effective due to its expiration date. It provided

[N]o Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article;

Hence, when the Civil War began and until after it ended, Federal efforts to eliminate the institution of slavery by force of arms against the states where slavery was lawful contravened the protections to which the institution was there entitled under the Constitution. It could be argued that it also contravened the Tenth Amendment, quoted below.

By 1861, the Constitution had been ratified by thirty-four states, including those, and the citizens of which, engaged on both sides in the Civil War. Aside from the quoted portion of Article V which was already obsolete due to the passage of time, the protections afforded the institution of slavery were countermanded by the Thirteenth, Fourteenth and Fifteenth Amendments only after the end of the Civil War. The process of Southern reconstruction impelled their ratification.

The Tenth Amendment, ratified in 1791 along with the rest of the Bill of Rights, remains in effect. It provides,

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Thirteenth Amendment provides,

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

Proposed on January 31, 1865, thirty states had ratified it by 1865. It “was specifically rejected by Delaware on Feb 8, 1865; by Kentucky on Feb 24, 1865; by New Jersey on Mar 16, 1865; and by Mississippi on Dec 4, 1865.” They later ratified it. Although approved by Louisiana, Tennessee, Arkansas and Virginia,

The governments of Louisiana, Tennessee, and Arkansas were those established under President Lincoln’s Reconstruction policy. In Virginia, the Thirteenth Amendment was ratified by a “rump” legislature, which had begun meeting in Alexandria shortly after the Civil War began, claiming to be the legitimate and loyal representative of the state in the Union. It had earlier approved the creation of the state’s western counties into the new state of West Virginia. The U.S. State Department accepted the ratification from those four and, later, other Southern states.

The Fourteenth Amendment provides in relevant part,

Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

was specifically rejected by Texas on Oct 27, 1866; by Georgia on Nov 6, 1866; by North Carolina on Dec 14, 1866; by South Carolina on Dec 20, 1866; by Kentucky on Jan 8, 1867; by Virginia on Jan 9, 1867; by Louisiana on Feb 6, 1867; by Delaware on Feb 8, 1867; and by Maryland on Mar 23, 1867. New Jersey’s ratification was rescinded on Mar 24, 1868; Ohio rescinded its ratification on Jan 15, 1868

When a fair vote was taken on it in 1865 . . . it was rejected by the Southern states and all the border states. Failing to secure the necessary three-fourths of the states, the Republican party, which controlled Congress, passed the Reconstruction Act of 1867 which placed the entire South under military rule.

The purpose of this, according to one Republican congressman, was to coerce Southern legislators to vote for the amendment “at the point of a bayonet.” President Andrew Johnson called this tactic “absolute despotism,” the likes of which had not been exercised by any British monarch “for more than 500 years.” For his outspokenness Johnson was impeached by the Republican Congress.

Although impeached (the articles of impeachment are at the link) by a vote of one hundred and twenty-six to forty-seven by the House, conviction by the Senate failed by one vote (thirty-five to nineteen). In 1875, Johnson became the first former President to serve in the Senate. In 1862, President Lincoln had

appointed him military governor of Tennessee. In an effort to win votes from Democrats, Lincoln (a Republican) chose Johnson (a War Democrat) as his running mate in 1864 and they swept to victory in the presidential election.

The Fifteenth Amendment provides,

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

Proposed on February 26, 1869, it was ratified by 1870, also by thirty states. It was

specifically rejected by Kentucky on Mar 12, 1869; by Delaware on Mar 18, 1869; by Ohio on Apr 30, 1869; by Tennessee on Nov 16, 1869; by California on Jan 28, 1870; by New Jersey on Feb 7, 1870; and by Maryland on Feb 26, 1870. New York rescinded its ratification on Jan 5, 1870, and rescinded the rescission on Mar 30, 1970.

California later ratified it in 1962, Maryland in 1973, Kentucky in 1976 and Tennessee in 1997.

The Thirteenth, Fourteenth and Fifteenth Amendments permitted substantial growth in racial equality in later years. Although ultimately beneficial, that does not diminish the heavy handed way in which they were proposed and ratified. Nor does it diminish the problem that in seeking to end slavery by force of arms against the Southern States, the Federal Government attempted to right wrongs by emasculating the Constitution. History offers substantial support for the Southern view that it fought the Civil War to prevent efforts by the Federal Government to exceed its powers under the Constitution and thereby to nullify rights it guaranteed to the states. The Constitutional rights of the citizens of the Southern States which permitted slavery were among those the Federal government sought to nullify by the Civil War and later, having won, to defeat through Constitutional amendments during “Reconstruction.”

That is not intended to suggest that those who felt morally compelled to oppose slavery were in the wrong, only that the ends adopted lost more than a little of their luster by virtue of the means used. For the Federal Government to oppose slavery by force of arms was inconsistent with the Constitution from which all Federal powers derived and still derives legitimacy and under which the entire nation was and is still to be governed.

Conclusions

The U.S. Constitution is well worth saving, but not by violating, ignoring or otherwise diminishing it. We can properly amend it, a difficult process when the states are free to ratify or reject amendments. However, it is the only viable way unlikely to lead to long lasting scars or conceivably to another Civil War. The rights of the States are the keystone of the Federal system upon which the country was founded and prospered; chipping away at them even piece by piece, a few at a time, is perverse.

To have another civil war to preserve the federal union by disregarding the Constitution would be no less destructive and no less perverse than was the former. The Constitution provides sufficient political and legislative processes, if wisely used, to implement necessary changes and enough judicial safeguards to prevent Federal overreach in doing so. The Executive is required to follow the Constitution and to usurp neither the Congressional nor the Judicial prerogatives it embodies. The individual rights it guarantees are no less crucial. To avoid civil unrest and perhaps civil war, we should give far more thought than at present to returning to these and other basics of our form of government. Governments rot when their citizens let them and can recover only when their citizens demand it.

(The views expressed in this post are mine and do not necessarily reflect those of Warsclerotic or its other editors. — DM)

The American Declaration of Independence was written by a vile slave owner, Thomas Jefferson of Virginia. The American Constitution was written, at least in part, by vile racists and other “America Firsters.” They tried, but fortunately failed, to prevent noncitizens from exercising their sacred right to vote in national elections. Both demonic documents must be repealed and we must rejoin England, nay even better the European Union, to signal our virtuous multicultural nature and emphatic rejection of all evil past and present.

Antifa, Black Lives (only) Matter, La Raza, adherents to Islam (the Religion of Peace and tolerance), CAIR, the Muslim Brotherhood, Hamas and their other supporters — proponents of truth, justice, and true equality for all — will appreciate our efforts even more than they appreciate the removal of all artifacts of American history associated with our racist Wars for Independence and the Confederacy. To please them even more, we must expunge from our history — and from our minds as well — all residual evil thoughts. This is necessary for us to have freedom of proper speech and proper thought (only), as do the fortunate citizens of China, North Korea, Iran, Venezuela, Cuba and other glorious progressive nations.

The removal of a statue of George Washington — a vile slave owner who led our absurd rebellion against the British Empire — has already been proposed. Memorials to General Robert E. Lee and other racist Confederate terrorists have already been removed, “peacefully.” That’s not enough! We must move forward, ever toward the abyss, until America, as we know and despise her, no longer exists. Then, we will no longer have any basis for appreciating — let alone singing — such alt-right drivel as this:

Surely, no true American patriot could countenance such an abomination. America rightfully belongs to everyone, not just those who were born or already live here, but also to those who want to live here and ply their wholesome trades, safe from racist law enforcement. Welcome MS-13, Sinaloa, and all of the rest. America must become a true land of opportunity for all.

“There is a narrative that we are in a constitutional crisis,” Turley said. “I’ve been very critical of this president with regard to his tweets, which I think are unpresidential. And I don’t think are very helpful to his administration. But, when you separate the rhetoric from what the president has actually done, he actually has complied with the law. You know, when immigration orders went against him, he complied. He appealed. When the sanctuary cities cases, rulings went against him, he complied. So his history is actually staying within the navigational beacons of the constitution. So, you do have to separate in terms of what is actually happening to what has been said. That doesn’t excuse what’s been said. But, when you look at what The New York Times has suggested in its editorial, it, I believe, gets way ahead of its skis in terms of where we are in this country.”

America’s longest running soap opera is not General Hospital. It’s the Congressional Hearing, usually a venue for pontificating, show-boating, histrionics, preening for the cameras, insulting political enemies, and accomplishing little of value. Meanwhile the real work of the Republic either gets neglected or proceeds in silence at a glacial pace.

James Comey was the star of last week’s latest episode of the eternal DC soap. The one-time FBI director stayed true to his character, preening morally, striking Boy Scout poses, indulging faux-folksy interjections like “Lordy,” pretending to be sober and judicious, but all the while revealing the instincts of a bureaucratic cartel sicaria. He was obviously thirsting for revenge against the hated DC outsider and “liar” who unceremoniously fired him, so much so that he admitted to cowardice on multiple occasions, from failing to immediately confront Trump over his supposed sinister “direction” (Comey’s translation of Trump’s “hope”) that Mike Flynn get let off the hook; to his groveling obedience to AG Loretta Lynch’s politicized, justice-obstructing order to call the investigation into Hillary Clinton a “matter.” He displayed a brazen arrogance in admitting to leaking a memo, written in his professional capacity, to the New York Times through a cut-out, perhaps one of numerous other leaks emanating from this self-proclaimed pillar of professional rectitude even before he was fired.

So we got a few more details about a man we already knew was a publicity hound and power -hungry operator. But that portrait was painted back in July of last year, when Comey publicly laid out the predicates for an indictment of Hillary Clinton, then usurped the authority of the AG to let Hillary (and Loretta “Tarmac” Lynch) off the hook based on a legally irrelevant consideration of “intent.” The only thing interesting last week was watching how far Comey would debase himself to square the many duplicitous circles he had spun over the last few years.

Great fun for political junkies, but what useful purpose will be served by that spectacle? The media are happy, since they get free programming and more chum for their talking heads. They’re celebrating the 19 million viewers who supposedly tuned in, though that sum represents a little more than 10% of registered voters. Normal citizens were working their jobs and tending to their lives. From their perspective, the drama inside the Beltway cocoon is bureaucratic white noise. If they think about it at all, it’s to wonder whether the guilty leakers will be hunted down and punished, or just be “investigated” for months and months and then, like Hillary, given a pass. And Hillary is just one of numerous miscreants that need exposing and punishing for their corruption of the public trust in order to serve their political preferences or careerist ambitions.

Don’t hold your breath. More likely we’ll see a repeat of the 2003 Valery Plame inquisition, that ginned-up crisis about the illegal “exposure” of an alleged “covert” CIA agent. By the time it was all finished, Comey’s buddy Patrick Fitzgerald who, despite knowing the true identity of the leaker, like some low-rent Javert for three years hounded White House staffers until Lewis “Scooter” Libby was questionably convicted of four crimes. So fat chance the biggest offender of all, Hillary Clinton, will ever answer for putting national security at risk and treating the State Department like an ATM. Some small-fry staffers might get caught in the net, but the whales will just swim right through.

What’s really maddening, though, is that we’re into the second year of Trump’s critics still being infuriated by his style, even as they ignore or downplay the much grosser offenses of numerous Democrats. Much of the whole “Russia collusion” fantasy has been generated by Trump’s refusal to abide by the media and establishment-created protocols presidents are supposed to follow. Republican Trump critics are just as bad, still not figuring out that their fealty to exalted “protocols” and good taste are just what energized ordinary citizens, those folks grown sick of bipartisan elites who seemed to have more in common with each other than with the people they’re supposed to represent.

So, for example, we hear once again from the Wall Street Journal’s Peggy Noonan––who seems bent on spending the rest of her career playing Margaret Dumont to Trump’s Groucho Marx––whining about Trump’s asking Comey for “loyalty.” “Presidents don’t lean on FBI chiefs in this way,” Noonan sniffed. “It is at odds with traditional boundaries, understandings and protocols.” Really? Sez who? LBJ probably applied worse pressure than that before lunch every day. And few presidents “leaned on” J. Edgar Hoover only because the G-man had some pretty thick files on them.

As for “traditional boundaries, understandings and protocols,” where do they come from? Andrew Jackson? Political decorum and comity are good things, but in democratic politics they usually serve as gate-keepers separating the elites from their clients. They also are camouflage for disguising collusion or incompetence or inaction. They’re just the air-freshener for the political sausage factory. What matters is getting the sausage made.

But the only rule-book that matters is the Constitution. And it says a president can fire any executive employee, including the head of the FBI, any way he wants and for any reason he sees fit. The FBI is a federal agency, not a separate arm of the government, answerable to the Chief Executive, who, unlike Comey or Lynch, is directly answerable to the sovereign people. If they’re unhappy with the president’s tweets or brashness or actions, they’ll let him and his party know at the ballot box.

And that’s what’s objectionable about these opera-buffa “hearings.” The media and politicians are obsessing over superficial issues of presidential style, progressive fake news, and he-said-he-said squabbles, while the real work that needs to get done is being neglected. And Obama left behind some huge messes that Trump promised to clean up. We don’t need “hearings” about Russian interference in the election. That’s a dog-bites-man story. Just shoot the dog by increasing cyber-security, and stop talking about it. We don’t need hearings about alleged “Russian collusion” with the Trump campaign. Just shut up, investigate, and if necessary charge, prosecute, and convict the guilty. Ditto with the federal agencies leaking like a colander, the only substantive story in the Trump-and-Comey puppet show.

All of us need to get focused and hold the politicians’ feet to the fire and to make them deliver the changes necessary for restoring economic growth, reforming our broken health-care system, and straightening out our Kafkaesque tax code. These are hard problems with harder solutions, but they won’t get fixed if Congress is off mugging for television cameras or taking the whole month of August off.

Many Congressmen assure us that they are hard at work below the media’s radar. I hope that’s true, because if the Republicans and Trump fail to deliver on his promises with substantial change, we might see in our country a reprise of what just happened in England’s snap election, where a hard-left buffoon perhaps fatally wounded the Tories’ government. Trump promised to win so much the people will get sick of winning. He’d better make it happen, or else the people who put him in office will get sick of him. And our own country has plenty of hard-left buffoons itching to take his place.

(President Nixon entered into the Vienna Convention on the Law of Treaties, purporting to nullify the constitutional requirement of Senate ratification of treaties before they can go into effect. He had no authority to do so and President Trump, perhaps with the backing of Congress should he deem it appropriate, should declare the “Law of Treaties” null and void, retroactively. — DM)

FILE – In this Oct. 13, 1973 file photo, then-vice presidential nominee Gerald R. Ford, right, listens as President Richard Nixon, accompanied by Secretary of State Henry Kissinger, speaks in the Oval Office of the White House in Washington.

President Richard M. Nixon signed a monstrosity known as the Vienna Convention on the Law of Treaties. Think of it as “the treaty on treaties” — even though you probably thought we already had an American law of treaties.

Under Article 18 of the treaty on treaties, once a nation signs a treaty — or merely does something that could be interpreted as “express[ing] its consent to be bound by the treaty” — that nation is “obliged to refrain from acts which would defeat the object and purpose of the treaty.”

In other words, the Constitution notwithstanding, once a presidential administration signs or otherwise signals assent to the terms of an international agreement, the United States must consider itself bound – even though the Senate has not approved it, even though it has not been ratified.

Think, moreover, of how badly the treaty on treaties betrays our constitutional system, which is based on representative government that is accountable to the people. The Constitution’s treaty process is designed to be a presumption against international entanglements. Unless two-thirds of senators are convinced than an agreement between or among countries is truly in the national interests of the United States — not of some “progressive” conception of global stability, but of our people’s interests — the agreement will not be ratified, and therefore should be deemed null and void.

President Trump should not stop at Paris. While he’s at it, he should affirmatively withdraw the United States from the Vienna Convention on the Law of Treaties. We don’t need an international convention on that. We have a Constitution that renders multilateral boondoggles unbinding in the absence of super-majority Senate consent. Want to put “America first”? Then it is past time to reify our sovereignty and the rule of law — our law.

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It is welcome news that President Trump will pull the United States out of the Paris climate agreement. The pact promises to damage the economy while surrendering American sovereignty over climate policy to yet another international, largely anti-American enterprise.

It is unwelcome news, nevertheless, that so much was riding on the president’s decision to withdraw the assent of his predecessor, Barack Obama — America’s first post-American president.

In reality, Trump’s decision is monumental only because America, in the Obama mold, has become post-constitutional.

The Paris climate agreement is a treaty. We are not talking here about a bob-and-weave farce like the Iran nuclear deal. That arrangement, the “Joint Comprehensive Plan of Action,” was shrewdly packaged as an “unsigned understanding” — concurrently spun, depending on its apologists’ need of the moment, as a non-treaty (in order to evade the Constitution’s requirements), or as a binding international commitment (in order to intimidate the new American administration into retaining it).

The climate agreement, to the contrary, is a formal international agreement. Indeed, backers claim this “Convention” entered into force — i.e., became internationally binding — upon the adoption of “instruments of ratification, acceptance, approval or accession” by a mere 55 of the 197 parties.

For all these global governance pretensions, though, why should we care? Why should the Paris agreement affect Americans?

Yes, President Obama gave his assent to the agreement in his characteristically cagey manner: He waited until late 2016 to “adopt” the convention — when there would be no practical opportunity to seek Senate approval before he left office. But Senate consent is still required, by a two-thirds’ supermajority, before a treaty is binding on the United States.

At least that’s what the Constitution says.

But it is not what post-American, transnational progressives say.

They note that in 1970, President Richard M. Nixon signed a monstrosity known as the Vienna Convention on the Law of Treaties. Think of it as “the treaty on treaties” — even though you probably thought we already had an American law of treaties.

Under Article 18 of the treaty on treaties, once a nation signs a treaty — or merely does something that could be interpreted as “express[ing] its consent to be bound by the treaty” — that nation is “obliged to refrain from acts which would defeat the object and purpose of the treaty.”

In other words, the Constitution notwithstanding, once a presidential administration signs or otherwise signals assent to the terms of an international agreement, the United States must consider itself bound – even though the Senate has not approved it, even though it has not been ratified.

If a subsequent president wants to get the United States out from under this counter-constitutional strait-jacket, it is not enough merely to refrain from submitting the treaty to the Senate. The later president must take an affirmative action that withdraws the prior president’s assent. That is why Trump cannot not just ignore the Paris agreement; he needs to openly and notoriously pull out of it.

So why do we care about it? Because Nixon signed it. Could the reasoning here be more circular? The Constitution requires a signed treaty to be ratified before it becomes binding, yet we consider ourselves bound by signed but unratified treaties because a signed but unratified treaty says so.

How does that square with the Constitution? Wrong question. The right one, apparently, is: Who needs the Constitution when you have the State Department? That bastion of transnational progressives advises that, despite the lack of ratification under our Constitution, “many” of the treaty on treaties’ provisions are binding as — what else? — “customary international law.”

President Trump is taking a significant step in removing the United States from the Paris agreement. But the step should not be significant, or politically fraught, at all. President Obama’s eleventh-hour consent to the agreement’s terms should have been nothing more consequential than symbolic pom-pom waving at his fellow climate alarmists. It should have had no legal ramifications.

Think, moreover, of how badly the treaty on treaties betrays our constitutional system, which is based on representative government that is accountable to the people. The Constitution’s treaty process is designed to be a presumption against international entanglements. Unless two-thirds of senators are convinced than an agreement between or among countries is truly in the national interests of the United States — not of some “progressive” conception of global stability, but of our people’s interests — the agreement will not be ratified, and therefore should be deemed null and void.

Yet, the treaty on treaties enables senators to ignore their constituents’ interests without accountability. Senators from Ohio, West Virginia, Pennsylvania, and elsewhere are not forced to cast a vote on whether international climate standards, and the unaccountable bureaucrats behind them, should strangle their states. They get to say, “Don’t look at me. The issue has already been decided by the president, so our only remaining choice is to ‘save the planet’ by implementing these painful global mandates.”

President Trump should not stop at Paris. While he’s at it, he should affirmatively withdraw the United States from the Vienna Convention on the Law of Treaties. We don’t need an international convention on that. We have a Constitution that renders multilateral boondoggles unbinding in the absence of super-majority Senate consent. Want to put “America first”? Then it is past time to reify our sovereignty and the rule of law — our law.

(The views expressed in this article are mine and do not necessarily reflect those of Warsclerotic or its other editors. — DM)

President Trump’s initial executive order imposed a temporary ban on refugees from seven countries where terrorism is endemic and information on potential refugees is scant, pending development of a workable vetting procedure. He later vacated the initial order and replaced it with one affecting only six countries and making other changes not relevant to the points addressed in this article.

The initial executive order was rejected as unconstitutional, apparently because in violation of the First Amendment (freedom of religion), by several district court judges and the replacement order has had the same fate. The rulings were based, not on the text of the orders, but on Candidate Trump’s campaign references to a “Muslim ban.” Both orders applied equally to non-Muslims and Muslims from the subject countries. Neither mentioned, nor banned, nor applied to anyone from, any other Muslim majority country. According to the Pew Research Center, in 2010 there were “49 countries in which Muslims comprise more than 50% of the population.”

Professor Turley opined on Ms. Yates’ decision in the context of this graphic:

Sometimes congressional hearings bring clarity to controversies. Many times they do not. Controversies can become “curiouser and curiouser,” as they did for Alice in Wonderland. That was the case with the testimony of fired acting Attorney General Sally Yates before the Senate Judiciary Committee this week discussing her unprecedented decision to order the entire Justice Department not to assist President Trump in defending the first immigration order. Yates was lionized by Democratic senators as a “hero” and has been celebrated in the media for her “courageous stand.” However, for those concerned about constitutional law and legal ethics, there is little to celebrate in Yates’ stand. Indeed, her explanation before the Senate only made things more confusing. It was a curious moment for the new Alice of the Beltway Wonderland: “Curiouser and curiouser!” cried Alice (she was so much surprised, that for the moment she quite forgot how to speak good English).”

There has been considerable speculation on why Yates would engineer such a confrontation, but what is more important is her justification for ordering an entire federal department to stand down and not to assist a sitting president. Yates’ prior explanation fell considerably short of the expected basis for such a radical step. She dismissed the review of the Office of Legal Counsel (OLC) by insisting that those career lawyers only look at the face of the order and did not consider Trump’s campaign statements and his real motivations. Of course, many question the use of campaign rhetoric as a basis for reviewing an order written months later by an administration. Most notably, Yates did not conclude that the order was unconstitutional (in contradiction with her own OLC). Rather, she said that she was not convinced that the order was “wise or just” or was “lawful.” She does not explain the latter reference but then added that she was acting on her duty to “always seek justice and stand for what is right.” That is a rather ambiguous standard to support this type of obstruction of a sitting president. [Emphasis added.]

. . . .

Sen. John Kennedy, R-La., asked, “Did you believe, then, that there were reasonable arguments that could be made in its defense?” In an astonishing response, Yates said no because she decided on her view of Trump’s real intent and not the language of the order. However, many judges disagree with implied motive as the appropriate standard for review, as evidenced by the oral argument this week before the Fourth Circuit. More importantly, at the time of her decision, many experts (including some of us who opposed the order) were detailing how past cases and the statutory language favored the administration. It is ridiculous to suggest that there were no reasonable arguments supporting the order. [Emphasis added.]

I agree with Professor Turley’s analysis and posted the following comment arguing that there is Supreme Court precedent for ignoring politically oriented campaign rhetoric such as Candidate Trump’s reference to a “Muslim ban.”

Ms. Yates testified that substantially the same standards of review apply to executive orders as to acts of Congress.

When Obamacare was under discussion prior to enactment and when it was enacted, its basis was claimed to be the Commerce Clause of the Constitution. Those who wrote Obamacare and those who voted for it rejected the notion that it was a tax because to accept that classification would have been political suicide. President Obama did not suggest to the public that Obamacare was a tax. He claimed that it was appropriate under the Commerce Clause. As I recall, counsel for the Government rejected classification as a tax during oral argument, relying instead on the commerce clause.

The majority opinion written by Chief justice Roberts held that although violative of the Commerce clause, Obamacare was permissible instead under the powers granted by the Constitution to impose taxes and was, therefore, compliant with the Constitution. Even after the decision was released, President Obama continued to claim that it was not a tax.

Chief Justice Roberts cited the Congressional power to tax the non-purchase of gasoline — something the Congress had never done as to gasoline or any other commodity or service. He did not suggest how it could be done: tax everybody who fails to purchase gasoline, only the owners of automobiles, only the owners of gasoline reliant automobiles, only those owning such automobiles but failing to purchase specified quantities, and so on. As I recall, Prof. Turley wrote an article questioning the majority opinion’s reliance on the taxing powers of Congress. [Professor Turley wrote about the decision in an article title Et tu, Roberts? Federalism Falls By The Hand Of A Friend.– DM]

The evident basis of the Obamacare decision was the notion that acts of Congress are to be upheld if there is any Constitutional basis for doing so — despite politically motivated statements by members of Congress who had voted for it and despite assertions by the President and others that it was not a tax. Under the standard applied by Ms. Yates to President Trump’s executive order, such statements would have rendered Obamacare unconstitutional and obligated her, as Acting Attorney General, to refuse to support it in court. [Emphasis added.]

Ms. Yates was asked neither about the standard applied by the Supreme Court in upholding Obamacare nor her application of an apparently different standard to President Trump’s executive order.

The judges who have thus far rejected President Trump’s initial and second executive order adopted the same rationale as Ms. Yates. The judges who upheld the orders obviously did not.

It is probable that the Supreme Court will eventually decide on the constitutionality of President Trump’s revised executive order, particularly if (as seems likely) there is a split in the circuits. Justice Gorsuch will likely be among the justices who decide the case and the executive order will very likely be held constitutional. There will probably be more than five votes for its affirmation.

In the meantime, America will continue to receive substantial numbers of unvetted and potentially dangerous refugees whose admission the executive orders were intended to prevent. Oh well. What’s a few more American deaths by jihadists? What difference at this point does it make?